School leaders today find themselves walking a fine line between protecting students from an increasingly violent world and making sure students’ rights aren’t infringed upon in the process. Tough rules must be put in place, but at the same time, school leaders need some leeway in evaluating individual cases. Some instances seem cut and dried; other cases aren’t so simple.
When are school officials simply being cautious, and when are they overstepping authority? In this special feature, Safe Schools Today looks at three grey areas in particular: zero-tolerance policies, threat assessment, and random weapons searches and drug testing.
A recent decision by the 6th U.S. Circuit Court of Appeals has drawn attention across the nation to the constitutionality of schools’ zero-tolerance practices.
In a 2-1 decision released last fall, the court ruled mostly in favor of Knoxville, Tenn., student Dustin Seals, who was expelled in 1996 after Powell High School officials found a hunting knife in the glove box of the car he had driven to a football game. Seal said a friend had put the knife there without his knowledge.
The appeals courtwhich covers Tennessee, Kentucky, Ohio, and Michiganagreed with a 1999 decision by U.S. District Judge James Jarvis that Seal’s suspension was irrational and a violation of his due process rights under the U.S. Constitution.
The school board had argued that it didn’t matter whether Seal knew the knife was in his car, saying state law required his expulsion just for having a weapon on school grounds. The appeals court, in its majority opinion, ruled that “consistency is not a substitute for rationality.”
The case prompted the Tennessee General Assembly to clarify its zero-tolerance law. The amended state law says certain behaviors will not be toleratedsuch as bringing a weapon or drugs to school, or attacking a teacherbut the punishment does not necessarily have to be a one-year suspension.
In August, the Knox County school system settled its lawsuit with Seal by paying him $30,000. Seal was seeking $500,000.
The ruling has drawn attention from across the nation, prompting other school districts to review their own policies. Schools are questioning rules wherein students can automatically be expelled or sent directly to juvenile or criminal court without regard to the circumstances of the offense.
Seal’s lawyer, Tommy Hindman, says the case has “become the authoritative opinion on zero tolerance.”
“Zero tolerance is easier to say than to do,” says Joanne McDaniel, director of the Center for the Prevention of School Violence. “Some schools are taking a black-and-white approach rather than seeing the gray areas. Schools where we don’t see problems are putting much more thought into the implementation of the policies. There has to be ‘zero misunderstanding.’ Schools need a system in place that supports their philosophy, including strong staff support and an understanding of expectations as well as consequences.”
According to McDaniel, during the last school year there has been more thought put into zero-tolerance policies.
There seems to be a growing consensus that schools can’t take a one-size-fits-all approach to the policies they enforce. “Everyone thinks zero tolerance means the same thing for everyone,” says Julie Lewis, staff attorney for the National School Boards Association. “But that’s far from the truth. Every school board must define it for themselves.”
“You need to look at the developmental situation,” McDaniel says. One policy might make perfect sense for a 15-year-old, but the same policy doesn’t translate well to seven-year-olds.
Lewis says that schools often implement a policy but are not careful in defining what a weapon or drug is. This leads to the situations we read about in the paper, where students are suspended or expelled for bringing a water pistol, plastic knife, or aspirin to school. (For a sample zero-tolerance policy that does a good job of defining the offense, see the sidebar below.)
“Schools need to make sure their policies are clearly articulated to students and parents,” agrees Ronald Stephens, executive director of the National School Safety Center. “The concept of zero tolerance is good and helpful to administrators, but they must ask if it’s legal, reasonable, and whether or not it can be administered. Having a policy in place shouldn’t override fairness and common sense.”
Two second-graders from a Danbury, Conn., elementary school recently were arrested for making threats. The two seven-year-old boys were both charged with breach of peace after separate incidents at the school. Police say one boy threatened to shoot the parents of another student. The other boy was accused of threatening to kill another student.
“In light of Columbine and what’s going on in this country right now, no one is taking threats lightly,” says Danbury police Capt. Arthur Sullo.
But in a hint of the confusion surrounding threat assessments today, Danbury School Superintendent Timothy Connors was surprised to learn the second-graders were charged. He said police were called to help the school’s social worker counsel the students about inappropriate language.
“It wasn’t an incident where we were alarmed for the safety of the youngsters,” Connors says.
So when should school officials be alarmed? As when discussing what constitutes a weapon and what doesn’t, school leaders are struggling to decode what is an actual threat and what is merely a hoaxor an attempt to gain attention. With the highly publicized school shootings of the past few years and the anxious feelings following the Sept. 11 terrorist attacks, many schools and police departments feel no threats are purely innocent.
“School districts are really struggling with how to deal with threats,” Lewis says. “Schools would like to do an investigation and have counselors talk to students, but at the same time, [people’s rights] need to be protected.”
Most school leaders are looking to reports that came out of the Columbine investigation. There is also a report from the FBI (see sidebar, page 4), which gives schools help in deciphering and taking action against threats.
“The FBI report, which came out a year ago, is good for building-level administrators,” McDaniel says. But she says the full effect of the report might not be seen for another year or two: “It will take 18 to 24 months before everyone looks at the report and recognizes it as a resource.”
Most experts agree it’s important to have a threat assessment team made up of mental health professionals, law officers, facilities staff, teachers, and administrators in place. But the bottom line is that schools must provide a safe environment. “Nobody wants to be the next Columbine,” McDaniel says.
McDaniel cautions that when we read a newspaper story about a student who is suspended or expelled for seemingly harmless-sounding comments, we must remember that we don’t always know the whole history. The expulsion or suspension could be the result of a pattern of behavior the student has been exhibiting for years.
“School administrators need language in their code of conduct that reflects threat assessments and consequences,” Stephens says. “It’s driven as much by law as by district policy.”
In some places, local prosecutors have come to schools to discuss how they prosecute threats. “A few good prosecutions really sends the message [that threats won’t be tolerated],” Stephens says.
In an effort to involve students, an increasing number of states are implementing tip lines through which students and others can notify police anonymously.
One area of threat assessment in which schools aren’t always sure if they’re standing on firm legal ground involves threats that students make while involved in a class activity, such as writing a composition. Except in states that have specific laws, this information cannot be shared with law enforcement officials unless the school has parental consent.
“Many schools don’t know when they can share information,” Lewis says. “There are times when it’s unclear if a school can go to the police or if the police can share information with a school. Schools must ask if the work that contains the threat is actually part of the student’s educational record.”
Although some states have their own laws on this matter, Lewis says what schools would like to see is an amendment to the Family Education Rights and Privacy Act making it easier for them to share information with police.
Weapons searches and drug-testing
In June, the American Civil Liberties Union filed a federal lawsuit on behalf of students from Locke High School in south Los Angeles. The lawsuit says the school district violated constitutional protections by searching students without reasonable suspicion.
The school district has a policy that requires every middle and high school to conduct random weapons searches of students daily. Students are supposed to be searched in hallways or in empty classrooms, but the lawsuit claims Locke students are being searched in class and in front of their peers.
According to the suit, the practice subjects students to embarrassment, humiliation, loss of privacy, and emotional distress, and it also interferes with the educational process.
The district’s police chief says the searches, implemented eight years ago, have not produced a single gun. School board President Caprice Young says the absence of guns is proof that the policy works.
And in November, the U.S. Supreme Court accepted a case in which the 10th U.S. Circuit Court of Appeals said a rural Oklahoma school district violated the Constitution’s ban on unreasonable searches by requiring random drug tests of students involved in extracurricular activities.
“The issue presented is of major importance … to all public schools in the nation which are responsible for the safety of the students under their supervision on a daily basis and must address drug use which threatens their safety,” the school told the court in urging it to accept the appeal.
The Fourth Amendment case turns on whether schools have to prove narcotics problems before testing children and if testing is appropriate only for students who are involved in potentially dangerous activities, such as sports.
Tecumseh, Okla., school officials randomly tested about 500 students for drug use from 1998 to 2000.
“The noise that usually rises from the thought of random searches usually puts the idea down,” McDaniel says. “There needs to be an element of reasonable suspicion.”
But “the U.S. Supreme Court has been on the side of school officials for the last five to 10 years,” Stephens says. “It sees that schools have authority in these matters. The vast amount of schools shouldn’t feel intimidated by activist groups.”
The standing ruling on student searches still remains New Jersey v. T.L.O., which was argued in front of the U.S. Supreme Court in 1985. That decision says school officials must have a “reasonable suspicion” that a student is carrying a weapon or intends to break the law before searching a student.
On the other hand, police officers need “probable cause”a tougher standardbefore they can conduct a search.
As a New Hampshire case made clear last year, student resource officers (SROs) and administrators must make sure they don’t cross these lines.
“If an SRO is involved, there must be probable cause,” McDaniel says.
In the New Hampshire case, a Londonderry High School teacher saw a student pass another student a small, folded piece of tin foil. The teacher passed the information on to a school resource officer. The SRO did not feel he had probable cause to search the student but passed the information on to the assistant principal. The assistant principal questioned and searched the student. They found LSD on the student, and the SRO arrested him.
A Rockingham County Court judge threw out the evidence because the search violated the student’s Fourth Amendment rights. The judge found that the assistant principal was acting as an agent of the police and that the student should have been informed of his Miranda and due-process rights.
With zero tolerance, threat assessment, and search and drug-testing policies, what is most important is to have a working core of professionals and stakeholders involved in the decision-making process, experts agree.
“Involve teachers, custodians, counselors, parents, and studentsand don’t just take kids who are on student government, but all students, even those who at times face suspension,” McDaniel says. “You’re creating the opportunity to get a buy-in for the policy. If you create a buy-in by involving these groups, any policy can work.” n
Center for the Prevention of School Violence, 313 Chapanoke Road, Suite 140, Raleigh, NC 27603; phone (800) 299-6054, fax (919) 773-2904
Federal Bureau of Investigation, J. Edgar Hoover Building, 935 Pennsylvania Avenue, N.W. Washington, D.C. 20535-0001; phone (202) 324-3000
National Association of School Resource Officers, P.O. Box 40, Boynton Beach, FL 33425-0040; phone (888) 316-2776
National Resource Center for Safe Schools:
National School Boards Association, 1680 Duke Street, Alexandria, VA 22314; phone (703) 838-6722